Judicial Activism: Vague Phrases In The Constitution

Essay #1 – Judicial Activism Do we need judicial activism to flesh out the vague phrases in the Constitution? This question is truly at the heart of the topic. Do we need judicial activism to protect our rights? What exactly are our rights? While this may seem like a silly or obvious question, it is vitally important in answering this question. How is a court, or a legislature, supposed to draw meaning from such vague phrases as “Due Process of law” or “equal protection” or even “free speech?” While some of the rights guaranteed in the Constitution are quite straight forward, others are so vague as to be almost meaningless; absent some sort of guidance from the courts. But since our Founding Fathers did not put extraneous phrases in
the Constitution, each must have some mean-ing. The question is, should it be the courts’ job to flesh out the meaning? In 1803, in Marbury v. Madison, Chief Justice John Marshall stated that “it is emphatically the province and duty of the Judicial Department to say what the law is.” With this statement, Chief Justice Marshall staked a broad claim of authority for the judicial branch, to define the meaning of the Constitution, and to explain its limits. For the last two hundred years, the Court has been doing exactly that. Certain phrases in the Constitution are so broad as to have no plain meaning. Even when attempting to clarify the meaning of some terms, the Court itself is vague. For instance, in explaining the meaning of the Due Process Clause, the Court has held it provides “whatever process is due.” This is not an incredibly helpful standard. And so the Court has tried to clarify, on a case-by-case basis, what process is due. We also need activism to help cover all aspects of listed rights. For instance, ask someone what speech is, and they will likely tell you it is the act of vocalizing, talking. But the Freedom of Speech protected by the First Amendment has been expanded to include the right to wear whatever clothing you wish, the right to fund the political candidates of your choice – it has, in other words, morphed into a broader freedom to express yourself as you see fit. Some of the rights recognized by an activist court are not so controversial, For instance, the Supreme Court has held that there is a right to travel between the states.
While this may seem like a given, citizens of the former Soviet Union did not enjoy that right. They needed special papers to travel between the various republics that made up the U.S.S.R. The right to travel, however, is nowhere mentioned in the Constitution. It is not among the first eight amendments to the Bill of Rights, nor is it protected anywhere else. Without an activist court, this right might not exist. The written rights of the Constitution are not only rights the Founding Fathers intended to protect. Who is to define these unremunerated rights, if not the courts? However, judicial activism is a fairly recent phenomenon. Literature on it did not start appear-ing until the 1960s. This means that the country got along just fine for its first 170 years without resorting to unchecked judicial power. The Constitution has not changed much since the founding, and many of the confusing phrases have been in the Constitution since 1791. Yet things went along just fine. While the Constitution was not perfect, it has evolved. There have been twenty-seven amendments to the Constitution since the document was ratified, and seventeen of them have been added after the Bill of
Rights. The biggest problem with judicial activism is that it is entirely unprincipled.
There are no limits to judicial activism. It is essentially a license for a judge to place his or her own views in the Constitution. The implications of this are far reaching. If the Constitution’s meaning is malleable, then two things occur. First, it indicates that the Constitution changes based on who sits on the Supreme Court. This leads to heavy partisan bickering on those rare occasions when a seat opens up. The country divides, often bitterly, over who would sit in that seat; and rightfully so. Justices are appointed for life, and frequently serve over 15 years. This means their view of the law will be imposed for quite awhile. It also means that law loses stability every time a new justice is appointed, as we wait to see which of their personal views will find their way into the text. The second implication is a lack of respect for the law. When the public sees that the mean- ing of the law relies not on what the text of the Constitutions says, but rather on the personal views or opinions of the men and women sitting on the highest court, they lose respect for it. Why is the view of these nine people more correct or important than the views of the 535 men and women in Congress? Why is it more important than your view, or the view of the common person of the
street? This loss of respect for the rule can have far reaching implications, both at home and abroad. Here at home, it leads to a breakdown of civil order. Militia groups, like the Minutemen or the Montana Freeman, take the laws into their own hands, because they see government as failing. They view the attempts of judges in Washington to control their lives as government over-reaching of the worst sort and respond by stockpiling weapons and having face offs with the FBI. Judicial activism is a hard cookie to crack. On one hand, there is just too much to interpret, the other hand is strict and straight-forward. Either way, someone will decide what we live by.